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Issue with Possible Prescriptive or Permanent Easement by the Utility Company

Discussion in 'Easements & Right of Way Law' started by Vultocke, Dec 17, 2021.

  1. Vultocke

    Vultocke Law Topic Starter New Member

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    I am renovating an old home, and have run into an issue with the utility company. Pictures are attached below. The utility pole itself is located in the alley to the left of my property (diagram is attached) but the guy-wires are placed behind my garage and are bent around the corner of my garage (pictures below). I want the guy wires moved off of the garage. An engineer from the power company came out to take a look, and said that the only way to move the wires would be to move the location of the utility pole in the alley and that if I wanted to do that I would be responsible for the $6,000 relocation fee. I would like to explore my legal options before I agree to pay, or accept the fact that the wires are allowed to be wrapped around my garage.

    I'm not sure of the exact year, but the garage was built sometime between 1905-1912. Sometime before 1930 the alley immediately behind the garage was vacated and the land was added to my lot. I have yet to complete a survey so I am unsure if the guy-wires are placed on the original lot, or on the land that used to be part of the vacated alley (the area between the dashed red lines on the diagram indicates the possible location of the vacated alley). I checked with the title company and looked through the deed records and as far as both of us could tell, the power company has no easement on the back of my property. They do have an easement for a front corner of the property, but that is not an issue. In going back and forth with the power company, they originally claimed that they had a prescriptive easement (the wires have likely been there in excess of 30 years), but then switched up and started claiming they had a permanent easement. Although they did not verify with them, I went through the ORC I think the statute they are claiming the permanent easement under is ORC 723.041. (Section 723.041 - Ohio Revised Code | Ohio Laws) That part of the code dates to 1961, well after the alley was vacated and the garage was built.

    The issues boiled down as I see them
    1. If the guy wires are in the area of the lot that belongs to the vacated alley, does ORC 723.041 apply retroactively, still giving the utility company the permanent easement?

    2. If the guy-wires are in the area of the original lot, or ORC 723.041 does not grant a permanent easement, what are the odds the power company could argue successfully for a prescriptive easement, or I could argue against one?

    3. Are there any possible torts or other claims I could pursue for the guy wires being wrapped around the corner of the garage?

    I'm currently in my last year of law school and would like to represent myself if I have any viable claims. An attorney would be too much for me and win or lose, I think it would be a good learning experience for me if I did take it to court.

    Attached Files:

  2. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    A third-year really should be able to research this at least as well as anyone you are going to find on this forum.
  3. Zigner

    Zigner Well-Known Member

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    Fixed it for ya ;)
  4. welkin

    welkin Active Member

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    1. yes according to the ordinance. It's not retroactively in my opinion. It's present day.
    2. Very good but since a prescriptive easement is only established by a court or by a written and recorded agreement of both the servient and dominant estates.
    3. Not that I can think of.
  5. OldSurveyor

    OldSurveyor Member

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    It's unlikely that the power company would use ORC 723.041.

    They do not need to do so in order get a prescriptive easement.

    In Ohio, they need to show that the pole and it's appurtenant features have been in place for a period of 21 years and that the owner(s), whoever that is or was could clearly see the items.

    The former alley is a non-issue as it was attached to the residential lot more than 70 years ago.

    The power company might also turn up a written express easement from 60 or 70 years ago. I have seen it happen. Title companies here in Ohio typically disclaim any liability for such issues which might have been discovered by a proper land survey or by other issues arising before a certain date (commonly 40 years here for a residential policy).
    Red Kayak likes this.
  6. Red Kayak

    Red Kayak Well-Known Member

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    You see wrong.

    The legal remedy is to pay the $6,000 relocation fee.

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